The Court of Appeal has recently ruled that for Article 50 to be activated (the formal notice to quit the EU) the government must place its proposals before Parliament, as it is the ultimate legislative authority in the land. It hasn’t gone down that well. The judges of the appeal court have been branded by the tabloid press as “enemies of the people”, a phrase historically and not coincidentally associated with the Nazis and East German Stasi. The Appeals Court was, however, merely doing its job. A look back into our history and the rules of Law that were born of it make things quite clear.
The British constitution is an unwritten constitution in which the executive (Ministers of the Crown and the Prime Minister) are held accountable by the legislature (the Commons and the Lords). Many of our constitutional practices are governed by precedence, and it has been an accepted principle of democracy since the English Civil War and the execution of Charles I in 1649, that Parliament supersedes rule by executive prerogative. This was settled by Parliament’s victory at the battle of Worcester in 1651, and enshrined in English law after the Glorious Revolution of 1688. A minister cannot legally ignore or overturn practices established under such fundamental precedents – only the full legislature can do that. Nor has the present Prime Minister received a mandate in a general election.
The ruling of the Appeals Court says nothing about the decision to leave the EU, only about the process for leaving. It took a vote in Parliament to place us in the EU, so logic would suggest it might be advisable to vote on the process for leaving. It would also have the sensible advantage of forcing the government to indicate some clarity of intent and provision, thus providing the electorate with some idea of what kind of post-Brexit arrangements Britain is looking for.
When you look at our national law and the democratic values that created it, you do wonder at the fact that anyone is surprised by this ruling, and at quite how the government thought it would be able to ignore Parliament. Judges are not the enemies of the people or the government. They are simply keepers of law.
Terry Jones taught History to adult students taking Foundation courses at a College of Higher Education prior to their entry into full-time degree courses at Warwick and Coventry Universities. Since taking early retirement, he has travelled widely in Eastern Europe, pursuing a life-long interest in 19th and early 20th century European history. He has been a GCSE and "A" level tutor with OOL since 1996.